Mediation: yes, no, don’t know…
In the summer of 2015, the Cologne-based Soldan Institute surveyed 1,132 practising lawyers in Germany on the effects of the Mediation Act, which came into force in 2012. The results of the survey are sobering: a total of 86% of the lawyers surveyed were either unable to give an assessment or were of the opinion that the Mediation Act has not contributed to strengthening the importance of mediation in practice. In contrast, various studies from the past (e.g. by ROLAND Rechtsschutz-Versicherungs-AG, PwC or KPMG) have shown that mediation as a consensual procedure for out-of-court dispute resolution is well known among companies and consumers and is recognized as a useful conflict resolution procedure. This raises the question as to why mediation is only gaining cautiously in importance in Germany, even after the Mediation Act came into force. Two further figures are interesting in this context: of 334,499 civil proceedings concluded before German regional courts in 2014, 87,085 (26%) were ended by settlement. The Soldan Institute has determined that the probability of a lawyer being confronted with a mediation mandate is significantly higher in larger law firms than in individual law firms or small law firms. Larger law firms will predominantly handle corporate mandates, possibly with an international context.
The following theses can be formulated:
- In larger law firms, there will be more professionals who have knowledge of and experience with out-of-court dispute resolution procedures than in small law firms or in individual law firms and who then also recommend these to their clients;
- (International) corporate clients are more familiar with out-of-court dispute resolution procedures and use them as additional options for out-of-court dispute resolution.
The Mediation Act will soon have been in force for three years, but unfortunately it has not yet provided any significant impetus for the promotion of out-of-court dispute resolution in Germany. A great deal of educational work is still required to dispel the reservations that still exist against out-of-court dispute resolution procedures. Lawyers should also bear in mind Section 1 (3) BORA with regard to sustainable client care:
“As an independent advisor and representative in all legal matters, the lawyer shall protect his clients from loss of rights, assist them in shaping the law, avoiding conflicts and settling disputes, protect them from wrong decisions by courts and authorities and safeguard them against unconstitutional interference
and state overreach of power.”
Companies should have the courage to critically examine the use of out-of-court dispute resolution procedures in suitable cases and to consider out-of-court dispute resolution as a sustainable, resource-saving alternative and, if necessary, also demand consideration of this from their advisors.
Perhaps future studies will paint a different picture.
The results of the current study by the Soldan Institute are discussed by Prof. Kilian/Hoffmann and printed in ZKM issue 6/2015, p. 176ff.
